The Oil Nationalization Act passed unanimously by both houses of the Iranian Parliament in March, 1951, raised once more the long-standing issue of Iran's claim to sovereignty over Bahrayn. The Iranian extremists, from both the left-wing Tudeh Party and the right-wing Fida'iyan Islam group, at first criticized Parliament for its silence about the oil of Bahrayn but, when the law for the expropriation of the Anglo-Iranian Company was enacted in April, they demanded that these laws should in like manner be applied to the Bahrayn Petroleum Company, jointly owned by the Standard Oil Company of California and the Texas Company, on the grounds that the Bahrayn Islands form a part of Iranian territory.

The increasing number of claims by various states to submarine areas beneath the high seas has recently raised anew the question of the status of such claims in international law. The importance of the problem, with its possible impact on traditional legal concepts, has attracted the attention of writers and of several bodies interested in the development of international law, including the International Law Commission of the United Nations. It is to be hoped that out of the present ferment will emerge some sound legal principles which will reconcile new needs with established patterns in such a manner as to win general assent. To this end it may be useful, now that there are some years of state practice and learned discussion to draw upon, to comment on various views that have been advanced.

The doctrine of the equality of states has undergone gradual modifications, especially in more recent times—since the establishment of the League of Nations. The great Powers have probably at all times dominated the political scene, particularly during the nineteenth century. But since there existed no international organization, this predominance did not express itself in legal, but only in political terms, although it may at times have assumed a quasilegal status, such as in regard to the lawmaking provisions of various treaties of the nineteenth century, sponsored mainly by the great Powers, which acquired the character of general international law. It was only when international organizations were established, based on legal principles, that the dominant position of the great Powers received legal sanction.

The Institute of International Law, Recalling its Resolutions of New York (1929) on the international rights of man, of Brussels (1936) on the juridical status of stateless persons and refugees, and of Lausanne (1947) on the fundamental rights of man, the basis of a restoration of international law.

The twenty-ninth year of the Court at The Hague was marked by sustained and fruitful activity. Two judgments were handed down in the Colombian-Peruvian Case Relating to Asylum, and four advisory opinions were given at the request of the General Assembly of the United Nations. Proceedings in the Franco-Egyptian Case on Protection of French Nationals in Egypt were discontinued. At the close of the year four cases were on the Court’s list: the Anglo-Norwegian Fisheries Case, the Rights of American Nationals in Morocco Case, a second Colombian-Peruvian Asylum Case, and a request for an advisory opinion concerning Reservations to the Genocide Convention. The progress registered during the year in the extension of the Court’s jurisdiction was disappointingly slight.

The veto question, one of the most controversial problems facing the United Nations, has several aspects of unequal importance. First, there is the great political problem of the relations between the great Powers on the one hand, and the small and middle-sized states on the other, as well as of their role in an international organization. This problem, being a political one, is reflected in the whole constitutional structure and functions of the organs of the United Nations. Second, there is the well-established traditional legal principle of equality of states, big and small, mighty and weak. This principle was reiterated in the United Nations Charter in Article 2 (1), which reads: “The Organization is based on the principle of the sovereign equality of all its Members.” Both these aspects of the veto question are well known and have been discussed to such an extent as to be entirely left aside in these remarks.

The Governments signatory hereto, being Members of the Council of Europe, Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December, 1948.

If, after the nineteenth century, there remained any question concerning the universality of international law, or of its fundamental rules, it appeared to be largely one of legal history. But as the world of the twentieth century has come to be divided by political ideologies, their legal ramifications have given the question new actuality as one of basic legal theory. That the Family of Nations, or the subjects of international law, embraced virtually all states of the world seemed no longer open to serious doubt when non-Christian states wholly outside Europe took part in the Hague Peace Conferences of 1899 and 1907 and when participation by such states was continued and further extended in the Paris Peace Conference of 1919 and in the League of Nations. Yet the same period that saw the unquestioned global expansion of international law has had to face new challenges to its unity as a single, universally valid legal system. They were raised chiefly by German Nazis and Soviet Communists, or in turn against them by their respective critics and opponents. Confronted with these challenges, the universal validity of international law appears no longer as an existingphenomenon that may be traced back to its origins and on to its eventual completion, but as a debatable assumption that stands to be justified or rejected in the light of fresh examination.

Once more, as he did sixteen years ago, this writer wants to raise his voice in order to point at the actual chaotic status of the laws of war, at the grave inherent dangers, and at the urgent necessity for the revision of this part of international law. The problem involves the very survival of our Western Christian civilization, if not of mankind. Under these circumstances it becomes the duty of an international lawyer to treat this subject, notwithstanding its “unpopularity” since 1920. It was Grotius who, under the impression of the “total war” of thirty years urged upon men the necessity of the “temperamenta belli.” It is amazing to see that the men of this generation, living under a more terrible total war, turn their backs upon the laws of war. This neglect is the outcome of different and often contradictory ideologies: indifference, apathy, over-optimistic wishful thinking, political wishes to keep one’s hands free in the next war, and pessimistic fatalism. All the arguments for this neglect are untenable, are in contradiction with the law as well as the facts; and yet, strong drives by writers and statesmen have nearly succeeded in putting over men a veil of voluntary blindness in adopting a policy of the ostrich which may lead to disaster, to the return of new and more terrible “dark ages.” A full exposé would need a book, not an article. But while no full picture can be given here, it will be attempted to give, at least, a complete sketch, dealing with the law and the facts, with the arguments pro and con.

“… Since it is essential that all frontiers, whether on land or at sea, should be certain and definite, all rights which depend for their exercise upon territorial sovereignty must be valid up to a given line and there stop.” Very rarely, however, in treaties or in national laws are descriptions of water “boundaries” sufficiently precise to enable an engineer to lay them down on hydrographic charts, or to “demarcate” them in the waters themselves. About all one can say is that, if the base line is agreed upon, the outer limit of the territorial sea is acceptedas the envelope of the arcs of circles having a radius of three nautical miles (or any other agreed-upon limit) drawn from all points on the coast. The remark of Professor Riesenfeld may therefore be recalled: “It can probably be said without exaggeration that the law of territorial waters has been one of the most unsatisfactory portions of international law.”

In the case of Sei Fujii v. The State, the District Court of Appeals of California held that a State statute which prohibited aliens ineligible to citizenship from acquiring land within the State was “in direct conflict with the plain terms” of provisions concerning human rights in the United Nations Charter, a treaty binding upon the United States. Consequently, land granted to a Japanese in 1948 did not escheat to the State. The case involves important questions of United States constitutional law, of international law, and of legal policy.

On the issue of constitutional law the opinion follows a long and unbroken tradition that if State legislation conflicts with obligations undertaken by the United States in a treaty, the legislation will not be applied by the courts. The terms of Article 6, paragraph 2, of the Constitution are unambiguous:

The Geneva Conventions are the basis on which rest the rules of international law for the protection of the victims of armed conflicts.

Hitler had been recognized by all foreign governments. Also during the last war the recognition was not withdrawn. One has therefore to assume that, from the point of view of international law, Hitler was the lawful government and representative of Germany. For the purposes of this article we need not deal with the question whether, according to German public law, he came to power, for instance, by means of a coup d'état or a perjury.